Upload
others
View
0
Download
0
Embed Size (px)
Citation preview
CONTRACT TITLE: POWER PURCHASE AGREEMENT CONTRACT NUMBER:
AWARD DATE:
CONTRACT PERIOD: 20 Years from the Actual Commercial Operation Date SERVICE: Electricity Service Provision BUYER CONTACT:
TITLE:
BUYER TEL: BUYER EMAIL:
SELLER NAME:
SELLER CONTACT:
TITLE: SELLER
TEL: SELLER
EMAIL:
PURPOSE: To establish a service contract for delivery of electricity.
i
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS .......................................................................................................... 1
ARTICLE 2: TERM ................................................................................................................... 11
ARTICLE 3: ENGINEERING AND CONSTRUCTION REQUIREMENTS ............................................ 14
ARTICLE 4: DELIVERY OF POWER, METERING & MONITORING ................................................ 18
ARTICLE 5: BILLING AND PAYMENT ........................................................................................ 23
ARTICLE 6: REMOVAL OF GENERATING FACILITY ..................................................................... 24
ARTICLE 7: SELLER’S ADDITIONAL OBLIGATIONS ..................................................................... 25
ARTICLE 8: FORCE MAJEURE .................................................................................................. 31
ARTICLE 9: DISPUTE RESOLUTION .......................................................................................... 34
ARTICLE 10: DEFAULT & REMEDIES ........................................................................................ 35
ARTICLE 11: REPRESENTATIONS, WARRANTIES AND COVENANTS ........................................... 40
ARTICLE 12: ASSIGNMENT AND FINANCING ........................................................................... 43
ARTICLE 13: OTHER TERMS & CONDITIONS ............................................................................ 47
EXHIBITS Exhibit A – Technical and Warranty Requirements Exhibit B – Engineering and Construction Requirements Exhibit C – Operations Forecasts, Scheduling Protocols, & Monitoring Exhibit D – Form of Attestation Exhibit E – Insurance Requirements Exhibit F – Workforce Plan Exhibit G – Form of Certification SCHEDULES Schedule 1 – Grant of Access Rights Schedule 2 – Early Termination Fee Schedule 3 – Notice Information
ii
Schedule 4 – Description of Generating Facility Schedule 5 – Project Site Description Schedule 6 – Contract Price Schedule 7 – Expected Annual Contract Quantity Schedule 8 – Project Milestones Schedule 9 -‐ Project Management Reimbursement Schedule 10 -‐ Cash Flow Tables Showing Value of Solar
1
This Regional Power Purchase Agreement is dated as of (“Effective Date”), and is witnessed, acknowledged, and executed by authorized representatives of , a limited liability company (“Seller”) and the (“Buyer”), as evidenced by their signature on the last page of this document
R E C I T A L S A. Buyer wishes to meet its power requirements cost effectively, efficiently and in an
environmentally-‐friendly manner;
B. Buyer has solicited proposals from persons, firms, organizations, and/or other legal entities to provide such power from renewable resources in a cooperative/joint solicitation led by the Council of Independent Colleges in Virginia;
C. Seller is in the business of designing, constructing and operating solar photovoltaic (“PV”) electric generating systems for the purpose of selling power generated by the systems to its Buyers;
D. Buyer has selected Seller to design, construct, own and operate solar PV generating systems to be located on its property subject to the terms, conditions, covenants and provisions set forth herein (each, a “Facility” and collectively the “Generating Facilities”);
E. Seller intends to construct, own, and operate renewable energy-‐powered Generating Facilities that shall qualify as an eligible renewable energy resource (“ERR”) under the State of Virginia Renewable Energy Portfolio Standard (“RPS”) and desires to sell electricity produced by such generating facility together with other attributes to Buyer pursuant to the terms, conditions, covenants and provisions set forth herein;
F. Buyer desires to purchase electricity generated by Seller’s Generating Facilities, together with all Environmental Attributes pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
2
ARTICLE 1: DEFINITIONS
References in this Agreement to the terms or phrases below have the meanings as set forth in this Article. In the event of a conflict between the information in this Article and any more specific provision of this Agreement, the more specific provision shall control.
1.1 “Actual Commercial Operation” means the condition in which a Facility: (i) has been constructed in accordance with Prudent Industry Practice, all Permits, Requirements of Law, the specifications set forth in Exhibit A [Technical and Warranty Requirements], Exhibit C [Engineering & Construction Requirements], and Schedule 4 [Description of Generating Facility] of this Agreement; (ii) Seller has successfully completed the Commissioning Tests, (iii) PG&E has approved installation and given its “Permission to Operate” notification, (iv) the Data Acquisition System has been commissioned and is transmitting data, and, (v) the Facility is capable of generating electricity for sale to the Buyer at the Project Site.
1.2 “Actual Commercial Operation Date” the date upon which Seller has notified Buyer in writing that it has satisfied the requirements of Actual Commercial Operation.
1.3 “Actual System Output” means the amount of energy recorded by the Seller’s metering equipment for a Facility during the relevant Measurement Period.
1.4 “Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by such specified Person.
1.5 “Agreement” means this Regional Power Purchase Agreement, effective as of the Effective Date, and entered into by and between Buyer and Seller, and all exhibits, and schedules (each an “Exhibit” or “Schedule”, as applicable) attached hereto and incorporated herein.
1.6 “Anniversary Date” means the first anniversary of the Actual Commercial Operation Date and that same calendar date for each succeeding Contract Year.
1.7 “Applicable Law” means, with respect to any Person, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, registration, license, franchise, permit, authorization, guideline, Governmental Authority approval, consent or requirement of any Governmental Authority having jurisdiction over such Person or its property, enforceable at law or in equity, including the interpretation and administration thereof by such Governmental Authority.
1.8 “Bankruptcy Event” means with respect to a Party, that either:
(a) such Party has (i) applied for or consented to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property; (ii) admitted in writing its inability to pay its debts as such debts become due; (iii) made a general assignment for the benefit of its creditors; (iv) commenced a voluntary case under any bankruptcy law; (v) filed a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization,
3
winding up, or composition or readjustment of debts; or (vi) taken any corporate or other action for the purpose of effecting any of the foregoing; or
(b) a proceeding or case has been commenced without the application or consent of such Party in any court of competent jurisdiction seeking (i) its liquidation, reorganization, dissolution or winding-‐up or the composition or readjustment of debts or, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of such Party under any bankruptcy law, and such proceeding or case has continued undefended, or any order, judgment or decree approving or ordering any of the foregoing shall be entered and continue un-‐stayed and in effect for a period of sixty (60) days.
1.9 “Business Day” means any day other than a Saturday, Sunday, public holidays recognized by Virginia governmental entities or any other day on which banking institutions in Virginia are required or authorized by Applicable Law to be closed for business.
1.10 “Buyer Act” means (i) an act of Buyer to repair the Project Site or the Project Site roof (as the case may be) for any reason not directly related to damage caused by the Facility, and such repair requires the partial or complete temporary disassembly or movement of the Facility, or (ii) any act or omission of Buyer or Buyer’s employees, Affiliates, agents, or subcontractors that results in a disruption or outage in Facility production.
1.11 “Buyout Date” has the meaning assigned to it in Section 2.2.
1.12 “Buyout Payment” has the meaning set forth in Section 2.2
1.13 “Buyer Address for Payments” means the address to which invoices to the Buyer should be sent, currently:
1.14 “Buyer Address for Notices” means the addresses to which notices to the Buyer should be sent as set forth in Schedule 3 of this Agreement.
1.15 “Buyer Default” – has the meaning set forth in Section 10.3.
1.16 “Virginia Renewable Energy Portfolio Standard” means the Virginia State Corporation Commission voluntary program that encourages electric utilities to procure electricity from eligible renewable energy resources to 15% of total procurement by 2025.
1.17 “Commissioning Tests” means the tests set forth in Exhibit B [Engineering & Construction Requirements].
1.18 “Commencement of Work Date” means the date on which Seller begins site preparation (including, but not limited to, grading or clearing the site) of the Project Site or the physical construction work at the Project Site of a Facility.
4
1.19 “Commercial Operation Deadline” means the date set forth in the U.S. Internal Revenue Service tax code regarding the current Business Energy Investment Tax Credit (ITC) qualification deadline, if applicable; provided, however, that the Commercial Operation Deadline shall be extended on a day-‐for-‐day basis for any Force Majeure Event or breach of this Agreement by Buyer, or to the extent the ITC construction deadline is extended for a Facility.
1.20 “Commercially Available Local Electric Utility Provided Energy” means the current applicable PG&E rate tariff time of use price in cents per kilowatt hour for the Project Site.
1.21 “Contract AC Power Rating” means the AC power rating for the Facility in a given Contract Year, as specified in Schedule 4 to this Agreement.
1.22 “Contract Capacity” means the maximum instantaneous output of the Facility in kilowatts AC measured at the Delivery Point.
1.23 “Contract Price” means the price in $U.S. per kWh to be paid by Buyer to Seller for the purchase of the Delivered Energy, as specified in Article 4 and Schedule 6 to this Agreement .
1.24 “Contract Year” means each year beginning on the Actual Commercial Operation Date and succeeding anniversaries of such Date (“Anniversary Date”), and ending on the date immediately preceding the subsequent Anniversary Date.
1.25 “Data Acquisition System” means physical devices, data monitoring equipment and apparatus associated with real-‐time monitoring of the quantities of AC energy generated by each Facility and complying with all requirements of Article 4.
1.26 “Daylight Hours” means hours that the inverter would normally be operating.
1.27 “Daylight Savings Adjustment” means the time periods that begin and end one hour later for the period between the second Sunday in March and the first Sunday in April, and for the period between the last Sunday in October and the first Sunday in November.
1.28 “Days” unless otherwise specified, shall mean calendar days.
1.29 “Degradation” means forecasted deterioration of the Facility calculated on an annual basis due to normal wear and tear and decreasing efficiency causing reductions in power output.
1.30 “Delivered Energy” the amount of Energy delivered by Seller as recorded by Seller’s Meters.
5
1.31 “Delivery Point” means the metering point at the load side of the transformer for each Facility, as specified in Schedule 4 of this Agreement [Description of Generating Facilities].
1.32 “Disruption Period” means the period of time that a Facility is not available due to a Buyer Act.
1.33 “Deemed Generated Energy” means the quantity of electric energy, expressed in kWh, that Seller reasonably calculates would have been produced by the Facility and made available at the Delivery Point during each Measurement Period, determined by taking into account during the relevant Measurement Period the pyranometers or like devices at the Facility, or if such monitoring equipment is unavailable during a relevant interval, then using available data or interpolated data determined in accordance with Prudent Industry Practices.
1.34 “EA Agency” means any local, state or federal entity, or any other Person, that has responsibility for or jurisdiction over a program involving transferability of Environmental Attributes, including the Clean Air Markets Division of the United States Environmental Protection Agency, the Virginia State Corporation Commission, and any successor agency thereto.
1.35 “Early Termination Fee” means the fee associated with an early termination of this Agreement in the amount expressed in dollars per Watt of the Facility’s size in Watts-‐DC ($/Wdc) as set forth in Schedule 2 of this Agreement [Early Termination Fee].
1.36 “Effective Date” means the date set forth in the first paragraph of this Agreement.
1.37 “Energy” means the electricity generated by each Facility pursuant to this Agreement,
as expressed in units of kWh.
1.38 “Environmental Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from each Facility, and its displacement of conventional energy generation. Environmental Attributes include but are not limited to: (i) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (Sox), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (ii) any avoided emissions of carbon dioxide (CO2), methane (CH4) and other greenhouse gases that have been determined by the United Nations Intergovernmental Panel on Climate Change to contribute to the actual or potential threat of altering Earth’s climate by trapping heat in the atmosphere; and (iii) the reporting rights to these avoided emissions such as Green Tag Reporting Rights. Environmental Attributes for purposes of this Agreement expressly excludes Existing Financial Incentives.
6
1.39 “Environmental Attributes Reporting Rights” means all rights to report ownership of the Environmental Attributes to any Person, including under the Energy Policy Act of 1992, and any regulations promulgated thereunder.
1.40 “Environmental Laws” shall mean and include all federal, state and local laws, statutes, ordinances, regulations, resolutions, decrees and/or rules now or hereinafter in effect, as may be amended from time to time, and all implementing regulations, directives, orders, guidelines, and federal or state court decisions, interpreting, relating to, regulating or imposing liability (including, but not limited to, response, removal, remediation and damage costs) or standards of conduct or performance relating to industrial hygiene, occupational health, and/or safety conditions, environmental conditions, or exposure to, contamination by, or clean-‐up of, any and all Hazardous Materials, including without limitation, all federal or state super lien or environmental clean-‐up statutes.
1.41 “Existing Financial Incentives” means (i) the ITC and any tax deductions or other benefits under the Internal Revenue Code or applicable state law available as a result of the ownership and operation of the Generating Facilities or the Output generated by each Facility (including without limitation tax credits, accelerated depreciation, or bonus depreciation) that are in effect on the Effective Date and, (ii) any other financial incentives that result from the ownership and operation of the Generating Facilities or the Output that are in effect on the Effective Date.
1.42 “Expected Annual Contract Quantity” means the amount of Delivered Energy and Environmental Attributes that Seller expects to deliver from a Facility to Buyer hereunder in a given Contract Year, as set forth in Schedule 7 of this Agreement [Expected Annual Contract Quantity].
1.43 “Expected Commercial Operation Date” means the date on which the Parties expect a Facility to achieve Actual Commercial Operation, established in accordance with Article 3.
1.44 “Facility” has the meaning set forth in the Recitals, as further described in Schedule 4.
1.45 “Fair Market Value” or “FMV” means the value a nationally recognized independent, third-‐party professional appraiser with experience and expertise in the solar photovoltaic industry would determine a photovoltaic system to have when negotiated in an arm’s-‐length, free market transaction between an informed, willing seller and an informed, willing buyer, neither of whom is under compulsion to complete the transaction.
1.46 “Financing Party” means, as applicable (i) any Person from whom Seller leases the Generating Facilities or (ii) any Person who has made or will make a loan to or otherwise provide capital to Seller with respect to the Generating Facilities.
1.47 “Force Majeure Event” has the meaning set forth in Article 8.
7
1.48 “Full Assignment” has the meaning set forth in Section 12.2.
1.49 “Generating Facilities” or “PV System” means each Seller electricity generating facility as more particularly described in Schedule 4 of this Agreement [Description of Generating Facilities], excluding the Project Sites, land rights, and interests in land.
1.50 “Governmental Authority” means any federal or state government, or political subdivision thereof, including, any municipality, township or county, special district or any other entity or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including, any corporation or other entity owned or controlled by any of the foregoing.
1.51 “Green Tag Reporting Rights” means the rights of a Green Tag purchaser to report the ownership of accumulated Green Tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other party at the Green Tag purchaser’s discretion, and include those Green Tag Reporting Rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program, with “Green Tag” meaning one (1) MWh of Environmental Attributes.
1.52 “Hazardous Materials” shall mean any and all (a) substances, products, by-‐products, waste, or other materials of any nature or kind whatsoever which is or becomes listed, regulated or addressed under any Environmental Laws, and (b) any materials, substances, products, by-‐products, waste, or other materials of any nature or kind whatsoever whose presence in and of itself or in combination with other materials, substances, products, by-‐ products, or waste may give rise to liability under any Environmental Law or any statutory or common law theory based on negligence, trespass, intentional tort, nuisance, strict or absolute liability or under any reported decisions of any state or federal court; and (c) any substance, product, by-‐product, waste or any other material which may be hazardous or harmful to the air, water, soil, environment or affect industrial hygiene, occupational health, safety and/or general welfare conditions, including without limitation, petroleum and/or asbestos materials, products, and by-‐products.
1.53 “Interconnection” means the interconnection of the Project Site electrical system to the Distribution System, including construction, installation, operation, and maintenance of all interconnection facilities.
1.54 “Interconnection Agreement” means the agreement between Buyer and the Local Electric Utility which sets forth the terms and conditions for Interconnection of the Facility and the Project Site electrical system to the Distribution System, as amended from time to time.
1.55 “Investment Tax Credit” or “ITC” means the federal tax credit associated with the ownership of eligible renewable energy projects as available under Section 48 of the Internal Revenue Code (26 U.S.C. Section 48).
8
1.56 “Kiosk” means a single viewing station for the Buyer and the general public to view the production of electricity of the Generating Facilities as defined in Article 4.1(c)
1.57 “kW” means one kilowatt of power or nameplate capacity expressed as peak power DC (direct current).
1.58 “kWh” means one kilowatt of electricity supplied for one hour.
1.59 “Holidays” for the purposes of this Agreement are New Year’s Day, President’s Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, and Christmas Day. The dates will be those on which the holidays are legally observed.
1.60 “Interest Rate” means, for any date:
(a) The per annum rate of interest equal to the “Prime Rate” published in The Wall Street Journal under “Money Rates” or such date (or if not published on such date on the most recent preceding day on which published); plus
(b) Two percentage points (2%); provided, in no event may the Interest Rate exceed the maximum interest rate permitted by Applicable Laws.
1.61 “Local Electric Utility” means the local electric distribution owner and operator
providing electric distribution and interconnection services to Buyer & Seller at the applicable Project Site.
1.62 “Local Electric Utility Tariffs” means the duly authorized tariff, rules, schedules, protocols and other requirements of PG&E, as these may be amended from time to time.
1.63 “Lost Output” means the Deemed Generated Energy calculated during Lost Output Events for the relevant Measurement Period.
1.64 “Lost Output Event” has the meaning set forth in Section 4.1(d).
1.65 “Measurement Period” has the meaning set forth in Section 4.1(d).
1.66 “Meter” or “Meters” means the physical metering devices, data acquisition equipment and apparatus associated with the meters owned by Seller and used to determine the quantities of Energy generated by each Facility and to record other related parameters required for the reporting of data to Seller.
1.67 “Metered Energy” means the amount of Energy measured at the Meter for each Facility, including any adjustments programmed into the Meter for distribution losses after the Delivery Point.
1.68 “Milestone” means a defined and significant event that will occur during the engineering, construction, and installation of the Facility, as identified in Exhibits A and
9
B, and Schedule 8, including, without limitation, completion of Commissioning Tests, issuance of a PG&E permission to operate notification, commissioning of the Data Acquisition System, and the occurrence of the Actual Commercial Operation Date.
1.69 “MW” means one megawatt of power or nameplate capacity expressed as peak power DC (direct current).
1.70 “MWh” means one megawatt of electricity supplied for one hour.
1.71 “Outage” means a physical state in which all or a portion of the Facility is unavailable to provide Energy to the Delivery Point.
1.72 “Output” means (i) the Contract Capacity and associated Energy; (ii) Test Energy; and (iii) all Environmental Attributes.
1.73 “Parties” means Buyer and Seller, and each such Party’s respective successors and permitted assignees.
1.74 “Party” means Buyer or Seller, and each such Party’s respective successors and permitted assignees.
1.75 “Permits” means local authorizations, certificates, permits, licenses, and approvals required by any Governmental Authority for the construction, ownership, operation and maintenance of a Facility.
1.76 “Person” means an individual, corporation, partnership, Limited Liability Company, business trust, joint stock company, trust, unincorporated association, joint venture, firm, or other entity, or a Governmental Authority.
1.77 “” means , who is the Local Electric Utility, as defined herein.
1.78 “Preliminary Requirements” has the meaning set forth in Section 3.7.
1.79 “Project Site” means the real property, on which each Facility is to be built and located, as described in Schedule 5 to this Agreement (Project Site Description).
1.80 “Prudent Industry Practice” means those practices, methods and equipment, as changed from time to time, that: (i) when engaged in, or employed, are commonly used in the State of Virginia in prudent electrical engineering and operations to operate electricity equipment lawfully and with safety, reliability, efficiency and expediency; or (ii) in the exercise of reasonable judgment considering the facts known, when engaged in could have been expected to achieve the desired result consistent with applicable law, safety, reliability, efficiency, and expediency. Prudent Industry Practices include but are not limited to an optimum practice, method, selection of equipment or act.
10
1.81 “Purchase Date” means the 91st day of every year following the 6th year anniversary of the Actual Commercial Operation Date.
1.82 “Renewable Energy Credit” has the meaning defined by the Virginia State Corporation Commission, as may be amended from time to time or as further defined or supplemented by applicable law.
1.83 “Renewal Term” has the meaning set forth in Article 2.1.
1.84 “Requirements of Law” means, collectively, any federal or state law, treaty, franchise, rule, regulation, order, writ, judgment, injunction, decree, award or determination of any arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon Seller or Buyer or any of their property or to which Seller or Buyer or any of their respective properties are subject.
1.85 “Schedule” “Scheduled” or “Scheduling” means the actions of Seller, Buyer and /or their designated representatives, including each Party’s Local Electric Utility, if applicable, of notifying, requesting and confirming to each other the quantity of Energy to be delivered for each interval on any given day on which the delivery of Energy is scheduled to occur during the Term at the Delivery Point.
1.86 “Seller” has the meaning set forth in the first paragraph of this Agreement, and for purposes of access rights and other rights necessary for Seller to perform its obligations hereunder, the term “Seller” includes Seller’s authorized agents, contractors and subcontractors.
1.87 “Seller Address” means:
.
1.88 ‘Seller Default” has the meaning set forth in Section 10.2(a).
1.89 “Seller’s Project Management Team” means individuals identified by Seller as responsible for oversight and contract management of all phases of project design/build, operations, maintenance, verification and billing account management.
1.90 “Solar Insolation” means the amount of solar energy in kWh per square meter falling on a particular location.
1.91 “Substantial Completion” means when (i) installation of all necessary components and systems of a Facility (except for completion of painting, final grading, and similar portions of the construction work not affecting the operability, safety, or mechanical and electrical integrity of the Facility) have been completed; (ii) the Facility is mechanically and electrically sound; and (iii) the Facility is ready for initial operation, adjustment, and testing.
1.92 “Taxes” has the meaning set forth in Section 5.2.
11
1.93 “Term” has the meaning set forth in Section 2.1.
1.94 “Transmission System” or “Local Electric Utility Electricity Grid” means the facilities used for the distribution and transmission of electricity, including any modifications or upgrades made to such facilities, owned or operated by the Local Electric Utility.
1.95 “WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program.
ARTICLE 2: TERM
2.1 TERM: The term of this Agreement shall commence on the Effective Date and shall continue for twenty (20) years from the Actual Commercial Operation Date of the Facility (“Initial Term”, and together with any Renewal Terms, the “Term”), unless and until terminated earlier pursuant to the provisions of this Agreement. After the Initial Term, this Agreement may renew for a Facility, or all of the Generating Facilities, for additional five year terms (each a “Renewal Term ”), if a written request for renewal is given by the Buyer at least one hundred eighty (180) days prior to the expiration of the Initial Term, or any Renewal Term, as the case may be. For each renewed Facility, the Parties shall confer and agree on a schedule for the Contract Price, Escalation Rate, Early Termination Fees, and Expected Annual Contract Quantity for any Renewal Term. The remainder of the terms and conditions shall remain substantially the same for each Renewal Term as for the Initial Term. If Seller consents to renewal of a Facility, it shall provide written notice of consent to the renewal within sixty (60) days of the date of the request by Buyer. If consent by Seller is not provided within such sixty (60) day period, this Agreement shall expire as to that Facility as of the last day of the Initial Term. No later than sixty (60) days after Seller provides consent to a Renewal Term, which consent shall state the mutually agreed upon schedule for the Price, Escalation Rate, Early Termination Fees, and Expected Annual Contract Quantity for such Renewal Term, Buyer shall confirm to Seller in writing of its intent to proceed with its option for a Renewal Term. Documentation of any such Renewal Term and changes to Contract Price, Early Termination Fees and Expected Annual Contract Quantity shall be in the form of an amendment to this Agreement. In the event Buyer does not provide such confirmation, this Agreement shall expire as of the last day of the Initial Term or applicable Renewal Term for such Facility. Upon expiration of the Initial or Renewal Term, Seller shall cause the Facility to be removed from the Project Site pursuant to Article 10.5(a). All timelines for action pursuant to this Section 2.1 may be extended at the Parties’ mutual written agreement.
2.2 BUYER’S EXERCISE OF PURCHASE OPTION: So long as a Buyer Default shall not have occurred and be continuing, Buyer has the option to purchase (the “Purchase Option”) a Facility for a purchase price equal to its FMV (the “Buyout Payment”), at any point after ninety-‐one (91) days after the sixth (6th) anniversary of the Actual Commercial Operation Date of the applicable Facility, provided, however, that such date shall not occur after the twentieth (20th) anniversary of the Actual Commercial Operation Date,
12
unless the Initial Term is extended pursuant to Article 2.1. If Buyer chooses to exercise the Purchase Option, the following steps shall be followed by the Parties:
(a) Buyer shall provide Seller with at least two hundred and forty (240) days written
notice of its intent to purchase the Facility on a date certain (such date, the “Buyout Date”).
(b) For a reasonable period not exceeding thirty (30) days from the date of provision of notice referred to in Article 2.2 (a), the Parties shall make best efforts to agree on the selection of a nationally recognized independent, third-‐party professional appraiser with experience and expertise in the solar photovoltaic industry to determine the FMV as of the Buyout Date. Within sixty (60) days of the selection of such appraiser, s/he shall evaluate and determine the FMV of the applicable Facility as of the Buyout Date and shall submit a report on same to the Parties. The costs of the appraisal shall be borne by Buyer.
(c) In the event that the Parties cannot agree on the selection of an appraiser to determine the FMV, each Party shall, no later than sixty (60) days from the date of notice referred to in Article 2.2(a), retain the services of a nationally recognized independent, third-‐party professional appraiser with experience and expertise in the solar photovoltaic industry. Each Party shall bear its own costs for its respective appraiser and of any appraisal conducted by him/her. Within fifteen (15) days of their retention, the two appraisers selected by the Parties shall mutually select a third nationally recognized independent, third-‐party appraiser with experience in the solar photovoltaic industry, whose services shall be equally paid for by the Parties. Within sixty (60) days of the selection of such third appraiser, the three appraisers shall evaluate and determine the FMV of the Facility and shall submit their reports to both Parties. The appraiser’s valuation that diverges the greatest from each of the other two appraisers’ valuations shall be disregarded, and the arithmetic mean of the remaining two appraisers’ valuations shall be deemed to be the FMV of the Facility. If no such valuation may be established then the arithmetic mean of all three valuations shall be deemed to be the FMV of the Facility. The appraisers shall conduct their appraisals independently and shall not share the results of their appraisal or data with each other.
(d) No later than sixty (60) days after determination of the FMV of the Facility, Buyer shall confirm to Seller in writing of its intent to proceed with its option to purchase the Facility at the Buyout Payment determined pursuant to this Article 2.2. In the event Buyer does not provide such written confirmation, the provisions of this Agreement shall be applicable as if Buyer had not exercised the Purchase Option.
(e) If Buyer confirms its intent to proceed with its option to purchase as specified above, the Parties shall promptly execute all documents necessary to (i) cause title and ownership of the Facility to pass to Buyer on the Buyout Date, free and clear of any Liens, and (ii) to the extent such warranties are assignable, assign all warranties
13
for the Facility to Buyer. Buyer shall pay the Buyout Payment to Seller on or about the Buyout Date, in accordance with any previous written instructions delivered to Buyer by Seller for payments under this Agreement. Upon such execution of documents and payment of the Buyout Payment, as to the applicable Facility this Agreement shall terminate automatically and Buyer shall own the applicable Facility and all Environmental Attributes and Existing Financial Incentives, if any, relating to the Facility. For the avoidance of doubt, payment of the Buyout Payment shall be in lieu of and instead of any payments described in Article 4 accruing from and after the Buyout Date. Seller shall provide all necessary cooperation with the Buyer to give prompt effect to this transfer.
(f) All other personal property of the Seller not included in the Buyer’s purchase shall
be removed by Seller from the Project Site within ninety (90) days of the Buyout Date at no cost to Buyer.
2.3 TERMINATION: Buyer may terminate this Agreement as to any Facility prior to the
expiration of the Initial Term without cause upon sixty (60) days’ prior written notice. If Buyer elects to terminate this Agreement for any Facility without cause, Buyer shall pay to Seller the applicable Early Termination Fee set forth in Schedule 2 of this Agreement. However, if Buyer terminates this Agreement for reasons otherwise specified in this Agreement including, but not limited to: (i) termination for CEQA compliance (Section 3.6); (ii) termination for Force Majeure (Article 8); (iii) termination for failure of the Preliminary Requirements (Section 3.9); or (iv) termination before commercial operation (Section 3.9), Buyer is not liable to the Seller for the Early Termination Fee. In the event that Buyer terminates this Agreement without cause, Seller shall, within one hundred eighty (180) calendar days of the notice of termination from Buyer, or Buyer’s payment of the Early Termination Fee, if applicable, shall cause the applicable Facility to be disconnected and removed from the Project Site, and shall remediate and restore the Project Site to the condition preceding the installation of the Facility as set forth in Section 10.5.
ARTICLE 3: ENGINEERING AND CONSTRUCTION REQUIREMENTS
3.1 Seller shall provide services as described herein and pursuant to Exhibit B – Engineering and Construction Requirements.
3.2 [Intentionally left blank].
3.3 Seller shall provide weekly status reports from the Effective Date through the Actual Commercial Operation Date, as well as any additional briefing requested by Buyer.
3.4 Seller will create, maintain and provide to Buyer, minutes of meetings between Buyer’s representatives and Seller’s Project Management Team.
3.5 Virginia DEQ Compliance
14
(a) Compliance with the requirements set by the Virginia Department of Environmental Quality is a condition precedent to the Buyer’s obligations under this Agreement. The Seller shall not have any right to install a Facility until the Buyer has fully complied with Virginia DEQ regulations, issued a statement to Seller attesting to the fact that Buyer has fully complied with Virginia DEQ regulations as it relates to the Facility included in this Agreement, and issued a notice to proceed to Seller. In most cases, the Buyer expects to satisfy the Virginia DEQ regulations with a Notice of Exemption for each Generating Facility.
(b) If the Buyer, in its discretion, determines that a mitigated negative declaration (“MND”) or environmental impact report (“EIR”) is required to comply with Virginia DEQ regulations, then Buyer shall, provide Seller with a written statement detailing the reasons that Buyer believes that a MND or an EIR is required to comply with Virginia DEQ regulations, the estimated cost to comply with Virginia DEQ regulations for the Facility, and a statement that it will or will not pay for the estimated cost to comply with Virginia DEQ regulations for the Facility. If Buyer declines to pay for all of the estimated costs to comply with Virginia DEQ regulations, then this Agreement shall terminate as to the Facility, and neither Party shall have any liability to the other Party (other than any such liabilities that have accrued prior to such termination).
(c) Within ten business days after the Effective Date, Buyer shall provide Seller either (1) a notice to proceed based on a Notice of Exemption under applicable law, or (2) the notice described pursuant to applicable law, including Buyer’s election regarding payment of costs.
3.6 Engineering -‐ Design Phase
During this phase, Seller shall proceed with all activities necessary to allow commencement of the construction phase, including completing the Preliminary Requirements (as set forth below) within the timeframes established in Schedule 8 [Project Site Milestones]. Upon completion of this phase, Seller shall proceed with the installation and construction phase. Seller’s failure to meet Preliminary Requirements will be subject to Section 3.9 below. (a) Preliminary Requirements:
(i) Prior to the execution of this Agreement, the Seller must comply with the insurance requirements for the design phase included as Exhibit E (Insurance Requirements). Seller shall maintain such coverage throughout this phase.
(ii) Seller must comply with all system design requirements set forth in Exhibit B [Engineering & Construction Requirements].
(iii) Within the timeframe set forth in Schedule 8 [Project Site Milestones]:
15
(1) Seller shall notify the Buyer in writing of the Expected Commercial Operation Date. The Expected Commercial Operation Date shall be no later than the CSI reservation expiration date which is provided in Schedule 8 of this Agreement, or any extensions thereof.
(2) Each Party, upon request, shall furnish current certificates evidencing that the insurance coverage required in Exhibit E is being maintained.
(iv) Within the timeframe set forth in Schedule 8 [Project Site Milestones]:
(1) Seller must have obtained a financing commitment for construction of each Facility and submitted a signed term sheet or redacted financing agreement as satisfactory proof of such financing commitment to the Buyer or in the alternative, Seller may certify in writing that Seller will be self-‐financing the construction of the Facility and that Seller has sufficient funds to do so. Such certification shall be submitted by Seller in the Form of Certification in Exhibit G of this Agreement [Form of Certification].
(v) Within the timeframe set forth in Schedule 8 [Project Site Milestones] for a Facility, Seller must have applied for a building permit for the Facility.
(vi) Seller must have obtained approval from the Buyer, which shall not be unreasonably withheld, conditioned or delayed of the final 100% detailed engineering drawings and specifications for the Facility. Seller must submit 65% and final 100% detailed engineering drawings and specifications for the Facility to Buyer for approval no later than the dates set forth in Schedule 8 [Project Site Milestones].
3.7 Construction Phase
(a) Prior to the execution of this Agreement, the Seller must comply with the insurance requirements for the construction phase included as Exhibit E (Insurance Requirements). Seller shall maintain such coverage throughout this phase.
(b) Seller will cause each Facility to be designed, engineered, installed and constructed substantially in accordance with Exhibit B (Engineering and Construction Requirements) of this Agreement and Applicable Law, including but not limited to, the payment of Prevailing Wages, as applicable. All construction of a Facility, including but not limited to, any site preparation, landscaping or utility installation, shall be performed only by Seller or by independent contractors with demonstrated competence and experience in the construction of the photovoltaic systems, and duly licensed under the laws of the State of Virginia, pursuant to written contracts with such contractors. Prior to the commencement of construction on a Facility, Seller shall deliver to Buyer for its review and approval, which approval shall not be unreasonably withheld, delayed, or conditioned, a complete set of plans and
16
specifications relating to the installation of the Facility, which shall comply with all applicable uniform construction codes. Buyer shall be deemed to have approved such plans and specifications if Buyer fails to transmit notice of disapproval within the timeframe established in Schedule 8 [Project Site Milestones]. Buyer shall have the right, but not the obligation, to inspect all construction solely for the purpose of confirming that Seller is adhering to the specifications provided for in Exhibit B (Engineering and Construction Requirements) to this Agreement, provided that Buyer’s inspections are done at a reasonable frequency and during reasonable dates and times.
(c) Seller must comply with all requirements set forth in applicable building and electrical codes and Exhibit B (Engineering and Construction Requirements).
3.8 Parties’ Rights to Terminate Prior to Commercial Operation
(a) Buyer’s Rights to Terminate: If Seller fails to complete the Preliminary Requirements in conformance with Section 3.7 with respect to a Facility, Buyer may terminate this Agreement as to the applicable Facility without penalty, liability or expense of any kind to Buyer by providing to Seller a written notice of termination after the deadline for completion of the Preliminary Requirements; provided, however that any such written notice of termination for non-‐compliance with Article 3.7, sections (a)(i) – (a)(v) shall be provided by Buyer to Seller prior to the Commencement of Work Date and any written notice of termination for non-‐compliance with Article 3.7 section (a)(vi) may be provided by Buyer after the Commencement of Work Date. The Buyer may extend deadlines at its option. If Buyer elects to terminate this Agreement pursuant to this Section 3.9(a), Seller shall take all actions necessary to return the Project Site to the condition Seller first encountered them, at no cost to the Buyer. Buyer’s right to terminate hereunder shall not be subject to the alternative dispute resolution procedures in Section 9.1. If Buyer determines that it wishes to exercise its termination right pursuant to this Section 3.9(a), Buyer shall give written notice to Seller within fifteen (15) days of such determination, specifying the basis for the termination. Upon receiving such notice, if Seller is able to cure, Seller shall have 45 days to provide a cure for the circumstance identified by Buyer as the basis for termination. The Buyer shall not exercise its rights under section 3.9(a) until it has provided a written notice to the Seller of its intent to do so and allowed the Seller 45 days to attempt to cure. The Seller shall have the option, but not the obligation, to cure.
(b) Seller’s Rights to Terminate: In the event that any of the following events or circumstances occur prior to the Actual Commercial Operation Date for a Facility, Seller may (at its sole discretion) terminate this Agreement, subject to Sections 3.9(d) and (e), as to the Facility, in which case neither Party shall have any liability to the other Party as to the Facility:
(i) Seller has not received a fully executed (i) Grant of Access Right (Schedule 1 to this Agreement), and (ii) a release or acknowledgement from any mortgagee of
17
the Project Site, if required by Seller or Seller’s Financing Party, to establish the priority of its security interest in the Facility.
(ii) Seller, after making best efforts to do so, has not received evidence that interconnection services will be available with respect to energy generated by the Facility.
(iii) Seller has reasonably determined that there are easements, covenants, conditions, or restrictions or other liens or encumbrances that would materially impair or prevent the installation, operation, maintenance or removal of the Facility.
(c) Mutual Rights to Termination: Either Party shall have the right to terminate this Agreement, without liability to the other Party if:
(i) Seller and Buyer mutually determine that the Project Site, as is, is insufficient to accommodate the Facility.
(ii) Seller and Buyer mutually agree that there exist site conditions at the Project
Site (including environmental conditions) or construction requirements that were not known as of the Effective Date and that could reasonably be expected to materially increase the cost of installing the Facility or would adversely affect the electricity production from the Facility as designed.
(iii) Seller and Buyer have reasonably determined that there has been a material
adverse change in the rights of the Buyer to occupy the Project Site or the Seller to construct the Facility on the Project Site.
(d) Remediation: If Seller wishes to exercise its termination rights listed in Section 3.9(b) with regard to a specific Facility, Seller shall take all actions necessary to return the Buyer’s Project Site where the applicable Generating Facility was to be installed to the condition the Seller first encountered it in within ninety (90) days.
(e) Buyer Option to Cure: Notwithstanding anything to the contrary, if Seller determines that it wishes to exercise termination pursuant to section 3.9(b), Seller shall give written notice to Buyer within 15 days of such determination, specifying the basis for the termination. Upon receiving such notice, if Buyer is able to cure, Buyer shall have 45 days to provide a cure for the circumstance identified by Seller as the basis for termination. The Seller shall not exercise its rights under section 3.9(b) until it has provided a written notice to the Buyer of its intent to do so and allowed the Buyer 45 days to attempt to cure. The Buyer shall have the option, but not the obligation, to cure.
ARTICLE 4: DELIVERY OF POWER, METERING & MONITORING
18
4.1 Purchase & Sale
(a) Commencing on the Actual Commercial Operation Date and continuing throughout the Term, subject to this Article 4, Seller shall sell and deliver at the Delivery Point, and Buyer shall purchase and accept from Seller at the Delivery Point, and pay for, the Output as follows:
Energy Pricing: The pricing for Energy delivered at the Delivery Point shall be the Contract Price for the current Contract Year. The invoice for Energy delivered by the Seller for the applicable monthly billing period shall be determined as follows: P = Payment to Seller for Energy supplied to the Buyer over the billing
period. P = EE x EP
EE = the total kWh of Delivered Energy to Buyer by Seller during the billing period.
EP= the Contract Price as per Schedule 6 to this Agreement – [Contract Price].
(b) Intentionally left blank.
(c) Meters
(i) The transfer of Energy from Seller to Buyer shall be measured by Meters at the Delivery Point, which are selected, provided, installed, owned, maintained, programmed and operated, at the Seller’s sole cost and expense, by Seller or its designee. Meters and all metering activities shall comply with all applicable requirements of the Local Electric Utility Tariffs and the Buyer-‐PG&E Interconnection Agreement. Seller shall exercise reasonable care in the maintenance and operation of the Meters, and shall test and verify the accuracy of each Meter at least every two (2) years. Seller shall inform Buyer in advance of the time and date of these tests, and shall permit Buyer to be present at such tests and to receive the results of such tests. Metering must have an equivalent accuracy of +/-‐ 2% or better and monitoring results from Seller’s Performance Monitoring and Reporting Service (PMRS) that is viewable by Buyer at all times.
(ii) Single Viewing Kiosk for the Generating Facility: At the location of Buyer’s choice, Seller will install a single Kiosk for viewing by the general public consisting of a 20”LCD screen with a computer and keyboard sufficient to view the Data Acquisition System (“DAS”) monitoring of the Generating Facilities. The computer and keyboard shall be housed in a cabinet whose design, aesthetics, and cost are mutually agreed upon by Buyer and Seller. Buyer will allow Seller to use a 120v electrical outlet and data outlet located at the mutually agreed upon location which will be within a reasonable distance of an
19
existing 120v electrical outlet. Seller’s total installed cost of the Kiosk shall not exceed $5,000 US dollars. Following installation, Buyer shall provide and maintain communications equipment and services to the Kiosk.
(iii) Communications Equipment. After the Actual Operating Date Seller shall install, own and maintain, at its sole cost and expense, communications equipment and services necessary to allow remote reading of the Meters.
(iv) Meter Updates. Seller shall at its sole cost and expense, install any updates or upgrades to the Meters, and all associated measuring equipment necessary to permit an accurate determination of the quantities of Energy delivered under this Agreement. Seller shall permit the Buyer or Buyer’s representative access to its Generating Facility for the purpose of verifying Meters.
(d) Delivery Obligation. Beginning on the Actual Commercial Operation Date for each applicable Generating Facility, such Generating Facility shall produce not less than 90% of the applicable Expected Annual Contract Quantity (after accounting for weather-‐ related and seasonal changes) during the Initial Term or applicable Renewal Term, if any, measured on a rolling, two (2)-‐year, cumulative basis (the “Measurement Period”), unless, and then only to the extent that, the failure to satisfy the Expected Annual Contract Quantity is due to (a) Facility failure, damage or downtime attributable to third parties, (b) resulting from general utility outages or any failure of any electric grid, (c) a Force Majeure Event or (d) acts or omissions of Buyer of any of its obligations hereunder, provided Buyer has received prior written notice from Seller of such acts or omissions (such losses “Lost Output”). Subject to the terms and conditions of this Agreement, beginning on the second anniversary of the Actual Commercial Operation Date, if the actual output of such Generating Facility for the two (2) year period prior to such anniversary (the “Actual System Output”) does not equal or exceed the Expected Annual Contract Quantity for such two (2) year period, Seller will credit Buyer on its next invoice an amount equal to the product of (i) the average of the annual Contract Prices found in the applicable site Schedule 6 during such Measurement Period multiplied by (ii) the difference between the Actual System Output plus the Lost Output and the Expected Annual Contract Quantity for such Measurement Period.
(e) Excess Energy. Buyer agrees to purchase up to 110% of the Expected Annual Contract Quantity each Contract Year. Buyer shall have the option, but not the obligation, to purchase the Output of any particular Generating Facility that exceeds 110% of the Expected Annual Contract Quantity. Seller will first offer any Energy beyond the 110% cap to Buyer and, only if Buyer does not exercise its option to purchase all or a portion of such excess Energy, Seller shall be permitted to resell the excess Energy, provided such sale is in accordance will all applicable laws
20
4.2 Monitoring System and Web Interface
(e) Seller shall install, maintain, control, and operate a monitoring system for each Facility meeting the following requirements (the “Monitoring System”):
(i) The Monitoring System shall include, without limitation, ability to monitor revenue grade AC production data; weather data, (including ambient temperature and wind speed); and shall include a pyranometer.
(ii) Seller shall make available to Buyer a web-‐based tool or interface to view, collect and store data, in real time, including the energy delivered, and greenhouse gas emissions reduced.
(iii) The Monitoring System shall meet or exceed PG&E monitoring and reporting standards.
(iv) Additional requirements and specifications for monitoring are described in Exhibit C – (Operations Forecasts, Scheduling Protocols, & Monitoring).
4.3 Delivery Point
(a) Allocation of Costs and Risks. Except as expressly set forth in this Agreement, Seller is responsible for any costs or charges imposed on or associated with the Output or the delivery of the Output hereunder up to and at the Delivery Point. Except as expressly set forth in this Agreement, the Buyer is responsible for any costs or charges imposed on or associated with the Output, or its receipt, after the Delivery Point.
4.4 Environmental Attributes
(a) Throughout the Term, Seller shall transfer to Buyer, and Buyer shall receive from the Seller, all rights, title and interest in and to the Environmental Attributes, if any, whether now existing or subsequently generated or acquired (other than by direct purchase from a third party) by Seller, or that hereafter come into existence, during the Term, as a component of the Output purchased by Buyer from Seller hereunder. Seller agrees to transfer and make such Environmental Attributes available to Buyer immediately to the fullest extent allowed by applicable law upon Seller’s production or acquisition of the Environmental Attributes. Seller agrees that the Contract Price, as applicable is the full compensation for all Environmental Attributes.
(b) Seller shall not assign, transfer, convey, encumber, sell or otherwise dispose of any portion of the Environmental Attributes to any Person other than Buyer.
(c) During the Term, Seller shall not report to any Person that the Environmental Attributes granted hereunder to the Buyer belong to anyone other than the Buyer,
21
and the Buyer may report under any program that such attributes purchased hereunder belong to it.
(d) PJM. If requested by Buyer, and at Buyer’s expense, prior to the Actual Commercial Operation Dates of a Facility, Seller shall register the Facility in PJM, and take all other actions necessary to ensure that the Energy or Environmental Attributes produced by the Facility are issued and tracked through PJM for purposes of satisfying the requirements of the Virginia Renewable Energy Portfolio Standard and transferred to Buyer, as applicable.
(e) Seller shall document the production of Environmental Attributes under this Agreement by delivering on an annual basis to Buyer an attestation of Environmental Attributes produced by the Facility and purchased by Buyer in the preceding Contract Year. On or before the Anniversary Date of each year following a Contract Year, Seller shall document the transfer of Environmental Attributes to Buyer under this Agreement by delivering to the Buyer an attestation of Environmental Attributes transferred under this Agreement in the preceding Contract Year. The form of attestation is set forth as Exhibit D [Form of Attestation]. Exhibit D [Form of Attestation] hereto may be updated or changed by Buyer as necessary to ensure that the Buyer receives full and complete title to, and the ability to record with any EA Agency as its own, all of the Environmental Attributes purchased hereunder.
(f) Documentation. At Buyer’s option, the Parties, each at the Buyer’s expense, shall execute all such documents and instruments in order to effect the transfer of the Environmental Attributes specified in this Agreement to the Buyer or its designees, as Buyer may reasonably request. Upon notification by an EA Agency that any transfers contemplated by this Agreement will not be recorded, the Parties shall promptly cooperate in taking all reasonable actions necessary so that such transfer can be recorded. Each Party shall promptly give the other Party copies of all documents it submits to the EA Agency to effectuate any transfers.
4.5 Tax Credits and Financial Incentives
(a) Buyer agrees to provide Seller information and documentation in support of Seller’s rights and interests in Internal Revenue Service tax related benefits. In connection with Buyer’s rights and interests in performance based incentive payments to be made under the CSI after the Actual Commercial Operation Date, Seller agrees to cooperate with Buyer, including signing authorizations needed by Buyer, to obtain any such performance based incentives.
ARTICLE 5: BILLING AND PAYMENT
5.1 Billing and Payment
22
(a) During the Term on a monthly basis Seller shall invoice Buyer, and Buyer shall make payment for Energy delivered to Buyer, in accordance with Article 4. Such payment is full compensation to Seller for the Delivered Energy received under this Agreement. Invoices furnished by Seller under this Agreement must be in a form acceptable to the Buyer, and must include a unique invoice number.
(b) All payments shall be made on or before thirty (30) days after receipt of an invoice. Each Party shall make payments by electronic funds transfer, if available, or by other mutually agreeable method(s), to the account designated by the other Party.
(c) All payments made hereunder shall be made free and clear of any tax, levy, assessment, duties or other charges and except as specifically set forth herein, not subject to reduction, withholding, set-‐off, or adjustment of any kind.
(d) Disputed Payments. If a bona fide dispute arises with respect to any invoice, Buyer shall pay the undisputed portion of the invoice and state, in writing, the basis for the dispute. The Buyer shall not be deemed in default under this Agreement for withholding payment for any disputed portion of the invoice, and the Parties shall not suspend the performance of their respective obligations hereunder. If an amount disputed by Buyer is subsequently deemed to have been due pursuant to the applicable invoice, interest shall accrue at the Interest Rate on such amount in dispute from the date becoming past due under such invoice until the date paid.
5.2 Allocation of Taxes and Possessory Interest Tax
(a) Buyer shall either pay or reimburse Seller for any and all taxes assessed on the generation, sale, delivery or consumption of electric energy produced by the Generating Facility or the interconnection of the Generating Facility to the Utility’s electric distribution system, including property taxes on the Generating Facility; provided, however, Buyer will not be required to pay or reimburse Seller for any taxes during periods when Seller fails to deliver electric energy to Buyer due to the action or omission of Seller. For purposes of this section, “Taxes” means any federal, state and local ad valorem, property, occupation, generation, privilege, sales, use, consumption, excise, transaction, and other taxes, regulatory fees, surcharges or other similar charges, but shall not include any income taxes or similar taxes imposed on Seller’s revenues due to the sale of energy under this Agreement, which shall be Seller’s responsibility. Nothing shall obligate or cause a Party to pay or be liable to pay Taxes for which it is exempt under the law.
ARTICLE 6: REMOVAL OF GENERATING FACILITY
6.1 Removal and Disposal Fund Requirements
(a) Removal and Disposal Fund – General. In order to ensure that funds are available for the removal of the Generating Facilities and remediation of the Project Sites upon the expiration or termination of this Agreement, Seller agrees to establish an
23
interest bearing escrow account at a federally insured banking institution to hold funds dedicated for such purpose (the “Removal Fund”). The terms for the escrow account shall be reasonably acceptable to the Buyer and the Seller.
(b) Interest. All interest earned shall become part of the Removal Fund.
(c) Buyer shall have the right to request and review Removal Fund balances at any point prior to expiration of Term, upon written notice to Seller.
(d) Deposits. Seller shall make deposits into the Removal Fund in annual amounts of $6 per KW, on the Actual Commercial Operation Date. Seller shall deposit equal annual amounts on the first day of each subsequent Anniversary Date during the Term. Seller agrees to deposit the annual amount until the Removal Fund (including interest income) has a balance equal to or greater than $120 per KW of nameplate capacity of the Generating Facilities. Funds from the Removal Fund shall be disbursed, as needed, on a pro-‐rata per KW basis for individual Project Sites; however, Seller’s costs of removal shall not be limited to amounts deposited in the Removal Fund.
(e) Estimate of Removal Costs. No later than five hundred and forty-‐five (545) days prior to the expiration of the Term for each Facility, Seller shall provide Buyer a written estimate of the cost to remove the applicable Facility and restore the applicable Project Site to its condition prior to the installation of the Facility. The Parties shall meet and confer within thirty (30) days after such written estimate is received by Buyer to resolve any concerns regarding such estimated cost. Upon the Parties’ agreement on the removal cost estimate, Seller shall deposit additional funds into the Removal Fund, if necessary, to ensure that the balance in the Removal Fund is greater or equal to the removal cost estimate determined pursuant to this Section 6.1(e).
6.2 Abandonment.
If Seller fails to complete its removal and restoration obligations under this Agreement within one hundred eighty (180) Days after termination of this Agreement, then, in addition to Buyer’s other remedies under this Agreement, at law or in equity for such failure, any part of a Facility and all personal property of Seller not removed from the Project Site within one hundred eighty (180) Days after such termination of this Agreement shall be deemed abandoned by Seller, and shall become the property of Buyer, and Buyer may, at its option, remove and warehouse or otherwise dispose of such property or retain ownership thereof indefinitely, as it determines in its sole discretion. Buyer shall have no liability to Seller for any property deemed abandoned per this Section 6.2.
ARTICLE 7: SELLER’S ADDITIONAL OBLIGATIONS
7.1 Seller shall provide Buyer with an as-‐built plan set after project completion.
24
7.2 Seller shall develop, finance, own, maintain and operate the Generating Facilities in accordance with this Agreement including the technical requirements set forth in Exhibits A [Technical and Warranty Requirements] and B [Engineering and Construction Requirements], access rights to the Project Sites, all Requirements of Law, all Permits, the Local Electric Utility Tariffs and Prudent Industry Practice. Additionally, Seller shall obtain the warranties described in Exhibit A [Technical and Warranty Requirements] for the equipment detailed therein.
7.3 Milestones
(a) Generally.
Seller shall diligently pursue all Milestones established pursuant to Exhibits A and B, Schedule 8, and the Expected Commercial Operation Date. The Parties agree that time is of the essence in connection with the completion of the Generating Facilities, and that Milestones for the development, financing and construction of the Generating Facilities must be achieved in a timely fashion. Seller will use best commercial efforts to achieve the Milestones mutually agreed to at the time this PPA is executed by the Seller and Buyer.
(b) Weekly Reports.
Unless otherwise specified in this Agreement, starting on the Effective Date, Seller shall provide